Guzman v. United States Of America et al

Filing 89

OPINION AND ORDER: re: 63 MOTION for Reconsideration. filed by The City of New York. For the foregoing reasons, the City's motion for partial reconsideration is GRANTED, and Plaintiffs Monell claim against the City under 42 U.S.C. § 1983 is hereby dismissed. The Clerk of Court is directed to close the motion at docket entry number 63. SO ORDERED.(Signed by Judge J. Paul Oetken on 9/13/2013) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
VICTOR GUZMAN,
:
Plaintiff,
:
:
-against:
:
UNITED STATES OF AMERICA, et al.,
:
:
Defendants. :
:
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11 Civ. 5834 (JPO)
OPINION AND ORDER

J. PAUL OETKEN, District Judge:
Victor Guzman brings this civil rights and tort action against Jason Robles, Joseph
Mercurio, Cornelius P. Clancy, Michael Reverendo, Michael Bryant, Kevin Roy, Bruce Taylor
(collectively, “the Individual Defendants” or “the Officers”), the United States of America, and
the City of New York (“the City”). Plaintiff asserts claims for (1) false arrest and imprisonment
(Count I); (2) malicious prosecution (Count II); and (3) violations of his Fourth and Fifth
Amendment rights, pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 389 (1971) (Counts III-V). Previously, all Defendants
moved to dismiss the Second Amended Complaint (“the Complaint”). In February 2013, the
Court granted in part and denied in part the United States’ and Individual Defendants’ partial
motion to dismiss and denied the City’s motion. See Guzman v. United States of America, No.
11 Civ. 5834 (JPO), 2013 WL 543343 (S.D.N.Y. Feb. 14, 2013). Presently before the Court is
the City’s motion for partial reconsideration of the Court’s opinion. For the reasons that follow,
the City’s motion is granted.

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I.

Background
Familiarity with the facts of this case is presumed. Accordingly, the Court relates only

those facts relevant to the instant motion.
A.

Factual Background

Guzman’s claims stem from the search of his home on the night of April 29, 2009,
conducted by the Individual Defendants, and his subsequent arrest after drugs were found
therein. In his Complaint, Guzman asserts two state tort actions against Defendants: false arrest
and malicious prosecution. In addition, he alleges constitutional torts, asserting violations of his
Fourth and Fifth Amendment rights pursuant to § 1983 and, insofar as the claims are against
officers of the federal government, Bivens. In Guzman, the Court dismissed Plaintiff’s
constitutional claims against the United States and its officers in their official capacities on
sovereign immunity grounds. See 2013 WL 543343, at *11-12. However, the Court denied the
City’s motion to dismiss Plaintiff’s § 1983 claims against it, determining that Plaintiff’s
Complaint sufficiently pleaded a policy or custom that was plausibly violative of his
constitutional rights. Id. at *12-13. The City now seeks reconsideration of that denial.
In determining that Guzman had sufficiently pleaded his constitutional claims against the
City, the Court cited paragraph 494 of the Complaint, which states, in part, that: “[t]he actions of
the individual defendants . . . were taken pursuant to the [] de facto policies and/or well-settled
and widespread customs, policies, and practices of THE CITY OF NEW YORK, which were and
are implemented by members of its police department.” In support of this allegation, Guzman
claimed as follows:
a. Members of the New York City Police Department are
encouraged and/or allowed by their supervisors to use coercive
and intimidating interrogation techniques, including
threatening arrest and deportation of the suspects and family
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members—i.e., without fear of reprimand, discipline, or even
re-training by the New York City Police Department.
b. Members of the New York City Police Department are
encouraged and/or allowed by their supervisors to conduct
illegal, intrusive, and excessive searches and seizures of
civilians—i.e., without fear of reprimand, discipline, or even
re-training by the New York City Police Department.
c. Members of the New York City Police Department are
encouraged and/or allowed by their supervisors to apply
coercive and intimidating interrogation techniques, in violation
of a suspect’s Miranda rights even after said suspect exercises
his Miranda rights not to speak to police officers—i.e., without
fear of reprimand, discipline, or even re-training by the New
York City Police Department.
d. New York City Police Officers, engaged in systemic and
ubiquitous perjury, both oral and written, to cover-up
constitutional and state law violations committed against
civilians by either themselves or their fellow officers,
supervisors and/or subordinates. They did so with the
knowledge and approval of their supervisors, commanders and
Police Commissioners who all:
i. tacitly accept and encourage a code of silence wherein
police officers refused to report other officers
misconduct or tell false and incomplete stories designed
to cover for and/or falsely exonerate accused police
officers; and
ii. encourage and/or fail to discipline officers for
“testifying” and/or fabricating false evidence to initiate
and continue the malicious prosecution of civilians in
order to cover-up civil right violations perpetrated by
themselves or fellow officers, supervisors and/or
subordinates against those civilians; and
e. The New York City Police Department AND THE CITY OF
NEW YORK with the knowledge, approval and
encouragement of the Police Commissioners, fail to properly
train, supervise and/or discipline officers concerning the
constitutional rights of individuals in their care and custody.

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Additionally, in paragraphs 502-504 of the Complaint, Guzman alleges that the
constitutional wrongs he asserts are the result of “systemic failures” that have “caused [the
City’s] police officers to believe that [unconstitutional] conduct” is permissible. Specifically,
this section alleges that the violative conduct includes “coercive and intimidating interrogation
techniques,” which involve, for example, the threat of “deportation of the suspects and family
members [sic] civilians”; “illegal, intrusive, and excessive searches”; and violation of a suspect’s
Miranda rights, “even after said suspect exercises his Miranda rights not to speak to police
officers.” The Complaint also alleges deliberate indifference on the part of the City to the use of
coercion, threats, and Miranda violations, especially as applied to immigrants or citizens of
Hispanic descent. (Compl. at ¶ 496.)
B.

Procedural Background

The City filed its motion for reconsideration on February 28, 2013. (Dkt. No. 63.)
Plaintiff opposed the motion on March 14, 2013 (Dkt. No. 66), and the City replied on March 21,
2013 (Dkt. No. 68.)
II.

Discussion
A.

Legal Standard

“A motion for reconsideration is an extraordinary remedy to be employed sparingly in the
interests of finality and conservation of scarce judicial resources.” Drapkin v. Mafco Consol.
Grp., Inc., 818 F. Supp. 2d 678, 695 (S.D.N.Y. 2011) (quotations and citation omitted). Thus,
the standard for granting such a motion is accordingly “strict.” Shrader v. CSX Transp., Inc., 70
F.3d 255, 257 (2d Cir. 1995). Generally, courts will only reconsider prior opinions in three
circumstances: (1) “an intervening change in controlling law”; (2) “the availability of new
evidence”; or (3) “to correct a clear error or prevent manifest injustice.” Cordero v. Astrue, 574

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F. Supp. 2d 373, 379-80 (S.D.N.Y. 2008) (quotations and citations omitted). “[On a Local Rule
6.3 motion,] a party may not advance new facts, issues, or arguments not previously presented to
the Court.” Polsby v. St. Martin’s Press, No. 97 Civ. 690 (MBM), 2000 WL 98057, at * 1
(S.D.N.Y. Jan. 18, 2000) (quotations and citations omitted). In other words, “in reviewing
motions for reconsideration courts will not ‘tolerate [ ] efforts to obtain a second bite at the
apple.’” Jacob v. Duane Reade, Inc., No. 11 Civ. 160 (JPO), 2013 WL 4028147, at *2
(S.D.N.Y. Aug. 8, 2013) (quoting Goonan v. Fed. Reserve Bank of New York, No. 12 Civ. 3859
(JPO), 2013 WL 1386933, at *2 (S.D.N.Y. Apr. 5, 2013) (omission in original)).
B.

Monell Liability

“It is axiomatic that municipalities cannot be held liable pursuant to § 1983 on a
respondeat superior theory.” Betts v. Shearman, No. 12 Civ. 3195 (JPO), 2013 WL 311124, at
*15 (S.D.N.Y. Jan. 24, 2013) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)).
Instead, “to hold a city liable under 1983 for the unconstitutional actions of its employees, a
plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2)
causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Wray v. City of New
York, 490 F.3d 189, 195 (2d Cir. 2009) (quotations and citation omitted); accord Zahra v. Town
of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (same). In order to allege such a policy or custom,
a plaintiff may assert one of the following:
(1) the existence of a formal policy officially endorsed by the
municipality; (2) actions taken or decisions made by municipal
officials with final decision making authority, which caused the
alleged violation of plaintiff’s civil rights; (3) a practice so
persistent and widespread that it constitutes a custom of which
constructive knowledge can be implied on the part of the
policymaking officials; or (4) a failure by policymakers to properly
train or supervise their subordinates, amounting to ‘deliberate
indifference’ to the rights of those who come in contact with the
municipal employees.
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Saenz v. Lucas, No. 07 Civ. 10534 (WCC), 2008 WL 2735867, at *5 (S.D.N.Y. July 9, 2008)
(emphasis added); accord Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (“In limited
circumstances, a local government’s decision not to train certain employees about their legal
duty to avoid violating citizens’ rights may rise to the level of an official government policy for
purposes of § 1983.”); Usavage v. Port Authority of New York and New Jersey, No. 10 Civ. 8219
(JPO), 2013 WL 1197774, at *20 (S.D.N.Y. Mar. 26, 2013) (the “failure to train theory of
liability requires proof of ‘deliberate indifference to the rights of persons with whom the
[employees] come into contact.’” (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)).
In other words, “boilerplate” allegations will not suffice. Id. (citation omitted).
While Monell claims are not subject to a “heightened” pleading standard beyond that
defined in Rule 8(a)(2), Leatherman v. Tarrant Cty. Narcotics Intelligence and Coordination
Unit, 507 U.S. 163, 168 (1993), such claims nevertheless must meet the plausibility requirements
of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 572 (2007), and Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements,” id. (citation omitted), will no more suffice in a Monell claim than in any
other, more standard, § 1983 allegation. See Plair v. City of New York, 789 F. Supp. 2d 459, 469
(S.D.N.Y. 2011) (“Following Iqbal and Twombly, Monell claims must satisfy the plausibility
standard[.]”). Accordingly, “[t]o allege the existence of an affirmative municipal policy, a
plaintiff must make factual allegations that support a plausible inference that the constitutional
violation took place pursuant either to a formal course of action officially promulgated by the
municipality’s governing authority or the act of a person with policymaking authority for the
municipality.” Missel v. Cty. of Monroe, 351 F. App’x 543, 545 (2d Cir. 2009) (citations
omitted). In sum, without more, “[t]he allegations [a defendant] acted pursuant to a ‘policy,’
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without any facts suggesting the policy’s existence, are plainly insufficient.” Id. at 545-46
(citation omitted); see also Santiago v. City of New York, No. 09 Civ. 856, 2009 WL 2734667, at
*3 (E.D.N.Y. Aug. 25, 2009) (“It is questionable whether the boilerplate Monell claim often
included in many § 1983 cases, including this one, was ever sufficient to state a claim upon
which relief could be granted. . . . In light of [Iqbal] and [Twombly] it is now clear that such
boilerplate claims do not rise to the level of plausibility.” (citations omitted)).
C.

Application of Law to Facts

The City contends that the Court overlooked Twombly and Iqbal in determining whether
Guzman sufficiently pleaded his Monell claim. (Defendant City’s Memorandum in Support,
Dkt. No. 65 (“Def.’s Mem.”), at 5.) The City does not suggest that Guzman is required to meet a
“heightened” pleading standard for his Monell claim, but instead argues that Plaintiff did no
more than “recit[e] the elements of a cause of action,” which is plainly insufficient under
Twombly and Iqbal. (Id. at 6 (quotations and citation omitted).) Assuming that Plaintiff
adequately pleaded several constitutional violations, the City notes that Plaintiff’s Complaint is
devoid of a single, non-conclusory allegation from which the Court could have plausibly inferred
the existence of a violative policy or custom. (Id. at 6-8.) In particular, the City takes issue with
the Court’s reliance on Leatherman and Rheingold v. Harrison Town Police Dep’t, 568 F. Supp.
2d 384, 394 (S.D.N.Y. 2008). Given that Leatherman predates both Twombly and Iqbal, the City
highlights that it “does not set forth the proper standard under which a Court should evaluate
whether a run-of-the-mill complaint is sufficient to survive a motion to dismiss under Rule 8.”
(Def.’s Mem. at 8.) The City also contests the Court’s citation of Rheingold for the proposition
that Leatherman “specifically rejected the argument that a plaintiff must do more than plead a
single instance of misconduct to establish municipal liability under section 1983.” (Id. at 13

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(quotations and citation omitted)); see also Rheingold, 568 F. Supp. 2d at 394; Guzman, 2013
WL 543343, at *12. Additionally, the City notes that the Second Circuit has continued to cite its
opinion in Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993), for the proposition that
“merely asserting the existence of a municipal policy is insufficient absent allegations of
underlying facts” (Def.’s Mem. at 12), despite the Supreme Court’s rejection of Dwares’ central
holding that Monell claims require a heightened standard in Leatherman.
The City is correct in noting that, when alleging a pervasive, albeit unofficial, pattern or
practice carried out by officials without final policymaking authority, “[a] single incident alleged
in a complaint, especially if it involved only actors below the policymaking level, generally will
not suffice to raise an inference of the existence of a custom or policy.” Dyno v. Vill. of Johnson
City, 240 F. App’x 432, 434 (2d Cir. 2007) (emphasis added) (quotations omitted) (quoting
Dwares, 985 F.2d at 100); accord Carlisle v. City of Yonkers, 104 F.3d 352, 352 (2d Cir. 1996)
(“As a general matter, however, a municipal policy cannot be inferred from a single incident of
illegality. . . . Because [Plaintiff’s] complaint and supporting documents were insufficient to
establish a custom or policy of discriminatory arrests, the district court properly granted
summary judgment for the City and the YPD.” (citation omitted)); Brogdon v. City of New
Rochelle, 200 F. Supp. 2d 411, 427 (S.D.N.Y. 2002) (“A single incident by itself is generally
insufficient to establish the affirmative link between the municipal policy or custom and the
alleged unconstitutional violation.” (citation omitted)). Additionally, with respect to the failure
to train theory of municipal liability, advanced by Plaintiff in paragraphs 502-506 in his
Complaint, the alleged deprivation must have “occurred as the result of a faulty training
program, ‘rather than as a result of isolated misconduct by a single actor . . . .’” Toliver v. City of
New York, No. 10 Civ. 5806 (SHS)(JCF), 2012 WL 6849720, at *7 (S.D.N.Y. Sept. 25, 2012)

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(quoting Amnesty Am. v. Town of Hartford, 361 F.3d 113, 130 (2d Cir. 2004)), report and
recommendation adopted, No. 10 Civ. 5806 (SHS), 2013 WL 146088 (S.D.N.Y. Jan. 14, 2013).
This requirement—the so-called “identified training deficiency”—together with a “close causal
relationship” between the training failure and the constitutional wrong, reflects a requirement
that “plaintiffs [] prove that the deprivation occurred as the result of a municipal policy rather
than as a result of isolated misconduct by a single actor, ensur[ing] that a failure to train theory
does not collapse into respondeat superior liability.” Amnesty Am., 361 F.3d at 130.
The City wrongly assumes that the Court disregarded Twombly, Iqbal, and their progeny.
The Court’s prior opinion clearly outlined the applicable legal standard for a motion to dismiss,
citing both cases. Moreover, the Court’s analysis of Guzman’s Monell claim reflected a
conclusion that Guzman’s allegations with respect to the City’s policy, custom, or practice were
plausible on their face, highlighting the Court’s awareness of the relevant precedent and its
effect. See Guzman, 2013 WL 543343, at *12. Nevertheless, it was error to maintain the Monell
claim in light of the Complaint’s boilerplate allegations and this particular claim’s lack of factual
support. As this Court has previously observed, “[t]o state there is a policy does not make it so.”
Betts, 2013 WL 311124, at *16; accord Plair, 789 F. Supp. 2d at 469 (“Here, the complaint lacks
sufficient factual details concerning Monell liability and contains boilerplate allegations of
unconstitutional policies and practices. Specifically, Plaintiff conclusorily alleges that the City
‘permitted, tolerated and was deliberately indifferent to a pattern and practice of staff brutality
and retaliation by DOC staff at the time of plaintiff’s beatings [which] constituted a municipal
policy, practice or custom and led to plaintiff’s assault.’” (citations omitted; alteration in
original)).

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And while respondeat superior is a valid theory by which a plaintiff may assert a state
tort claim against a municipality, as Guzman has done here, a Monell claim pursuant to § 1983
requires something more, and is not to be equated with, nor subsumed into, agency theory. Cf.
Abreu v. City of New York, 657 F. Supp. 2d 357, 360-61 (E.D.N.Y. 2009) (“In this regard,
Abreu’s complaint succinctly states one of the core legal concepts animating Monell liability.
But it does absolutely nothing else. No factual matter of any kind accompanies plaintiff’s rote
recitation of Monell. And the sparse facts that elsewhere make their way into the pleading, and
which outline a single, detached incident of misconduct by a few non-policy level officers, in no
way suggests a deliberate choice by municipal policymakers to turn a blind eye to
unconstitutional conduct.” (citations omitted)). At bottom, Guzman’s Complaint merely recites,
without factual support, that the threats and coercion to which he was subjected are the products
of an unofficial policy, carried out by officers and sanctioned by the City. Additionally, with
respect to the failure to train theory, there are no allegations from which the Court could infer
deliberate indifference on the part of policy-making officials or even the required causal link
between a failure to train and the resultant harm.
Accordingly, upon reconsideration, Guzman’s Monell claim is dismissed.

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III.

Conclusion
For the foregoing reasons, the City’s motion for partial reconsideration is GRANTED,

and Plaintiff’s Monell claim against the City under 42 U.S.C. § 1983 is hereby dismissed.
The Clerk of Court is directed to close the motion at docket entry number 63.

SO ORDERED.

Dated: New York, New York
September 13, 2013

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